H v Council: Another Court breakthrough in the Common Foreign and Security Policy

This summer alone, the Court of Justice (‘the Court’) has
issued two important decisions that will further shape the legal dimension of
the Common Foreign and Security Policy (CFSP). Despite this largely
intergovernmental sphere of law (the former Second Pillar) being merged into
the unified ‘EU’ at the Treaty of Lisbon, the pillar’s shadow still lives on. Lasting
evidence of CFSP as a separate but integrated sphere of law allow for it to be titled
‘CFSP law’, with judgments of the Court arising from interinstitutional and
direct action litigation, permitting its legal development. The two judgments, Tanzania (Case
C-263/14) and H v. Council (Case
C-455/14 P) address different questions, and with a third, Rosneft (Case
C-72/15), being delivered later in the year. This sequence of judgments
demonstrates the fluidity of CFSP dynamics. In this blog post, analysis will
focus on the H
v. Council judgment, and specifically, given its peculiarity, the
jurisdiction of the Court of Justice in CFSP.

From a simple reading of the Treaties, it would be
assumed that three individual articles pose problems for the Court of Justice’s
jurisdiction is matters pertaining to CFSP.

Article 24(1) TEU states, ‘…The Court of Justice of
the European Union shall not have jurisdiction with respect to these
provisions, with the exception of its jurisdiction to monitor compliance with Article
40 of this Treaty and to review the legality of certain decisions as provided
for by the second paragraph of Article 275 of the Treaty on the Functioning of
the European Union.’

Article 40 TEU states, ‘The implementation of the
common foreign and security policy shall not affect the application of the
procedures and the extent of the powers of the institutions laid down by the
Treaties for the exercise of the Union competences referred to in Articles 3 to
6 of the Treaty on the Functioning of the European Union. Similarly, the
implementation of the policies listed in those Articles shall not affect the
application of the procedures and the extent of the powers of the institutions
laid down by the Treaties for the exercise of the Union competences under this
Chapter.’

Article 275 TFEU states, ‘The Court of Justice of the
European Union shall not have jurisdiction with respect to the provisions
relating to the common foreign and security policy nor with respect to acts
adopted on the basis of those provisions. However, the Court shall have
jurisdiction to monitor compliance with Article 40 of the Treaty on European
Union and to rule on proceedings, brought in accordance with the conditions
laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or
legal persons adopted by the Council on the basis of Chapter 2 of Title V of
the Treaty on European Union.’

Generally therefore, it can be assumed that the there
is no basis for the Court to possess jurisdiction in matters relating to CFSP,
set out between Articles 21-46 TEU (‘Title V’). All relatively straightforward
it would seem? Not necessarily so. In fact, the complexity of the rules, and
the derogations set out are subject to varying interpretations which inevitably
end up before the Court such as this case in point.

H v. Council (Case
C-455/14 P) was an appeal of an Order by the General Court, concerning jurisdiction to rule on a staff dispute raised by an official serving the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH). Initially, upon
receipt of the case, the General Court made an Order on 10 July 2014 (Case
T-271/10, H v. Council,
ECLI:EU:T:2014:702) stating that the General Court had no jurisdiction on
the matter given it was CFSP, thereby interpreting the Treaties provisions on
lack of jurisdiction, Articles 24(1) TEU and Article 275 TFEU in a broad manner.
H appealed the Order of the General Court to the Court, as H was of the view
that the staffing issue within CFSP was an administrative act, and cannot be
construed as to entail non-jurisdiction of the Court, notwithstanding the fact that
the EUPM was formed
on a CFSP legal basis. The case presented itself as another opportunity for the
Court to refine what the extent of the jurisdiction of the Court is within the
delicate field of CFSP.

In the General Court, both the Council and the
Commission said the matter was CFSP, and therefore, pursuant to the second
paragraph of Article 24(1) and the first paragraph of Article 275 TFEU, that
the General Court did not possess any jurisdiction over it. On this point, the
General Court agreed. H disagreed, and in this appeal, set out two pleadings. The
Court of Justice only dealt with the second plea – the jurisdiction of the EU
judiciary in matters pertaining to CFSP. Given its findings on the second
ground of appeal on jurisdiction, it said there was no need to examine the
first.

Following the Opinion
of Advocate-General Wahl delivered in April 2016, the Court
of Justice delivered its judgment in July 2016. Whilst the Advocate-General
said the General Court was right by saying the Court had no jurisdiction, the
Court took a contrasting outlook to them both. Meeting in Grand Chamber, the
Court acknowledged that, principally, it can be assumed that the jurisdiction
of the Court does not extend to the CFSP provisions of the Treaties, known as
Title V, or Articles 21-46 TEU. Whilst this was the case, the Court also said
the general exclusion of the Court cannot extend to all aspects of CFSP. Based
on this assertion, it can be assumed that acts adopted on a CFSP legal basis
may come within the Court’s jurisdiction. In this case, this was despite the
EUPM being grounded on a CFSP legal basis through Article 28 TEU and Article
43(2) TEU. The issue was therefore, should administrative decisions falling
within the ‘day-to-day’ sphere of operations on the ground in the EUPM
constitute non-jurisdiction of the Court?

Decision 2000/906/CFSP amongst other things, set outs
the staffing arrangements for the EUPM. What is clear from the Decision is that
staff on the ground in EUPM are all subject to the rules and the direction of
the Civilian Operation Commander. This is sensical, given that the idea of
senior officials not being in central control of all staff would be an
operational and logistical nightmare. On closer inspection of the Decision
however, the legal positions of positions are in fact distinct, in that some
are seconded from national public bodies, and others are seconded from various
EU institutions, agencies, and bodies. Despite this difference, the Decision
allows for the coordination of day-to-day operations to cover ‘all’ staff. This
is the tool that the Court uses to prise open jurisdiction for the matter at
hand. Given that acts of staff management occurs in all EU public bodies, the
Court noted that the CFSP Decision on staff arrangements within EUPM is similar
to those exercised in EU institutions (paragraph 54). As a result, the Court
believes that the derogations imposed on the Court’s jurisdiction in both
Article 24(1) TEU and Article 275 TFEU cannot prevent the Court from exercising
review over staff management in EUPM, notwithstanding the fact that EUPM is
provided for by a CFSP legal basis.

This interpretation by the Court of Justice is not
without further justification. Reliance is placed upon a Decision governing the
statute, seat and operational rules of the European Defence Agency (EDA). The
Council’s Decision on the EDA, 2015/1835/CFSP, confers jurisdiction upon the
Court to adjudicate on matters relating to seconded national experts.
Furthermore on judicial review, the Court said, ‘…the very existence of
effective judicial review [is] designed to ensure compliance with provisions of
EU Law…’ (paragraph 41). This not the first time that the Court has used ‘rule
of law’ considerations in justifying allowances for judicial review. In addition,
the Court stated that the issue in this case was redeployment, and not
secondment itself, which it says the General Court mistook. Conclusively, the
‘no jurisdiction of the Court’ articles in the Treaties for CFSP does not mean
everything in a CFSP mission is beyond the Court’s reach. The Court therefore
concluded that the General Court erred in taking a broad view the Court’s principally
excluded position.

The Court’s judgment in H v. Council appears to be sound. To interpret all matters relating
to CFSP missions, including the administrative, procedural, and operational
issues as being ‘CFSP acts’ to escape judicial oversight of the EU judicial
body would have been over-interpretation of the restrictions on the Court which
have been set down by the Treaties. What construes a ‘CFSP act’ has gotten
smaller as a result, as the Court took a narrow construal of what a CFSP act is,
and the derogations imposed on the restrictive judicial review arrangements. The
Treaties distinguish between acts of foreign policy, and implementing acts.
Article 40 TEU states, ‘The implementation of…[CFSP] shall not affect the
application of the procedures and the extent of the powers of the institutions
laid down by the Treaties for the exercise of the Union competences…’. Even
though implementing acts of foreign policy, it would be erroneous to construe all
decisions of various importance within CFSP as ‘CFSP acts’, thereby excluding
judicial review.

Notwithstanding the environment in which missions like
EUPM operate, the Council’s argument that an operational issue in the context
of security and defence should fall outside the EU judicature is not
particularly strong. The Council has basically shot itself in the foot as a
result of the EDA Decision last year. Perhaps without realising the full
ramifications of Council Decision 2015/1835/CFSP in 2015, it is now having a
spill-over effect. The Council itself trampled over its own arguments by
granting the Court jurisdiction within one CFSP Decision on the EDA in 2015,
but then trying to claim that it does not have the same adjudication powers
within another early CFSP Decision on the EUPM. This argument wasn’t
sustainable, which the Council would have realised when the Court likely
queried the matter during oral hearing.

H v. Council is another case in a series
of breakthroughs for the Court of Justice in CFSP. Just because a measure is
concluded on a CFSP legal basis does not de-facto exclude the Court. The Court can
use secondary Union law, a CFSP Decision, to prise open the jurisdictional
bounds imposed on the former Second Pillar. The Mauritius (Case C-658/11) and Tanzania
(Case C-263/14) cases have demonstrated that the Court has been strong on
institutional procedure, and it is notable that the Court has opened up its
jurisdiction in CFSP once again, without making use of Article 40 TEU – its
‘border policing’ provisions between CFSP and non-CFSP. The outcome of this
case meant firstly, the General Court’s order finding of no jurisdiction has
been set aside. The Statute of the Court (Article 61) permits it to send back
cases to the General Court, for which it will be bound now on points of law that
have been issued by the Court. Hence, the Court has bounced the issue back to
the General Court to decide the case on matters of substance, now that its
jurisdiction has been affirmed.

The forthcoming Rosneft
judgment (Case
C-72/15, Rosneft Oil Company OJSC v. Her Majesty’s Treasury and Others),
a preliminary reference dealing with, amongst other things, the Court’s
jurisdiction in CFSP, will be decided by the Court later this year, and will be
keenly watched. (See discussion of the opinion in that case here).
As time goes on, the two differing legal regimes of CFSP and non-CFSP on EU
external action will continue, unless ‘splitting’ begins to become more
commonplace, where EU measures are decided upon a dual legal basis. Until such
a time when these issues of EU constitutional law are ironed out, the Court
will continue to be asked detailed intricate questions about its jurisdiction in
CFSP.